RBG and Roberts’ Rule

The Founders carefully allocated responsibilities among the branches to protect citizens from governmental over-reach. The Executive Branch has flouted those boundaries throughout the Trump Presidency, with Cabinet officers finally acting not as protectors of the Constitution, but as lackeys in service to the whims of the POTUS. In Congress, McConnell has used obstruction to undermine legislative deliberation, and focused on packing of the Federal Courts with partisans – using the filibuster when not in power, and then eliminating it for most positions during the Trump era.

The Roberts Supreme Court was the last holdout in the corruption of the Founders’ intentions. That has been uneven. Roberts hypocritically criticized the House Impeachment Managers for questioning the motives of the Republican Senate in failing to call witnesses, demanding respect for the “world’s greatest deliberative body” that McConnell has corrupted. But at least in the last Court session, Roberts insisted that precedent be honored, siding with the liberal members of the bench when his conservative peers attempted to over-ride prior judgments from his court.

With the death of Ruth Bader Ginsberg, that respect for precedent and the character of the Court is at risk. If Trump and McConnell succeed in seating a conservative ideologue, Roberts will find himself on the losing side in attempting to prevent arbitrary flouting of precedent.

The only method for restoring proper balance on the Court is for a Democratic-controlled Senate to mercilessly impeach Justices for judicial over-reach. The popular expedient – expanding the number of Justices – would be a mistake. Proper functioning of the Court requires thorough probing of the constitutional issues during oral arguments. As more Justices are added, that process will become unwieldly.

No, the proper approach is to erase McConnell’s legacy, just as he and Trump have worked to erase the legacy of our most popular politician (President Obama). Set up the impeachment express, and flush all the Conservative hacks out of the judiciary.

SCOTUS on Marriage Equality

The Supreme Court rendered its decision on Marriage Equality, finding for the petitioners in Obergefell v. Hodges. I have expressed my spiritual views on this matter. Suffice to say that I am broadly sympathetic.

What is curious to me is the content of Roberts’ dissenting opinion, in which he ends with the pouty “Don’t celebrate the Constitution. It had nothing to do with it.”

Roberts’ argument is that the Court was acting in a legislative role, redefining the meaning of a term of legal parlance (“marriage”) in a way that was not supported by the 14th Amendment. He references precedents concerning just compensation that the court later recognized overstepped the bounds of the 14th Amendment. Roberts also accuses the majority of undermining the process of democratic debate that was slowly turning the tide of public opinion in favor of same-sex marriage.

I find Roberts’ interpretation of judicial activism in the application of the 14th Amendment to be manipulative. As he asserts, certainly in the precedents he cites the Court should not have been trying to determine what is “fair” compensation. However, the 14th Amendment was established to address the issue of lack of compensation (slavery). Compensation for labor is a fundamental right.

In reading the majority opinion, I find validity in the conclusion, reached through detailed analysis, that marriage is such a fundamental right. They also establish clearly that denial of the right imposes burdens, both psychological and material, on same-sex couples. I believe that their opinion establishes a sound philosophical basis for application of the 14th Amendment, which exists precisely to overthrow long-held social prejudice that denies rights to minorities.

Roberts also makes a hysterical reference to the First Amendment, warning that religions that fail to perform same-sex marriage may lose their tax-free status. However, the establishment clause actually, in this case, applies in the other direction. There are religions that perform same-sex marriage, and no one has suggested that they be denied their tax-free status. The existence of laws that deny legal rights to same-sex couples joined by such religious authority is actually a form of establishment, and should be repelled.

I would be impressed if the dissenters addressed the substantive reasoning of the majority. As it is, I am afraid that they are simply going to fire the anger of those that find the definition of marriage to be a fighting matter.